By Sreeparna Das

The catholicity of marriage in various societies and cultures is ascribed to essential social and personal functions such as sexual gratification and regulation in marital life. Division of labour between sexes, economic production and consumption and quenching personal needs for affection, social status and companionship are also some major factors behind the institution of marriage.

However, marital rape creates cracks within this institution. In India, the definition of rape laws has witnessed many transformations through several amendments. The amendment that took place in 2013 widened the definition of rape under Section 375 of the Indian Penal Code (IPC). Before this amendment, the definition of rape in the IPC was as follows: “A man is said to commit ‘rape’ who, except in the cases hereinafter excepted, has sexual intercourse with a woman under six provided circumstances.”

After the heinous Nirbhaya gangrape case of December 16, 2012, India witnessed an extensive public agitation that led to the formation of a three-member committee headed by former Chief Justice of India JS Verma for suggesting reforms in criminal laws. The JS Verma Committee recommended some amendments in Section 375, which were incorporated in the IPC by the Criminal Law Amendment Act, 2013.

Now the definition of rape is more inclusive and wider. The Amendment Act adds acts like penetration of the penis into the vagina, urethra, anus or mouth, or any object or any part of the body of a woman or making another person do so; to apply mouth or touching private parts constitutes the offence of sexual assault. The 2013 Criminal Law Amendment Act also attached two new explanations which clarify that penetration implies penetration to any extent and lack of physical resistance is not material to constitute the offence of rape.

Marital rape is often addressed as an oxymoron, a contemporary socio-legal issue leading to debates among various stakeholders in society. In India, marriage is considered a sacrament, though it bears certain features of contract as well. The most important question which the issue of marital rape begs is how to ascertain consent between a husband and wife, whether it is necessary to obtain approval for each transaction or whether there exists some deemed consent between a husband and wife.

Before 2017, once a woman completed 15 years, there was no legal provision for safeguarding her from rape by her husband except in circumstances where she was living separately under a decree of judicial separation or otherwise, including any custom or usage. According to Section 376B IPC, in such a case, if the husband forcibly has sexual intercourse with her without her consent, he shall be punished with imprisonment for a term not less than two years but which may extend to seven years, and shall also be liable to fine.

Also Read: Covid-19 fake death claims: Supreme Court permits Centre to probe fake claims of ex-gratia

But in 2017, the Supreme Court in Independent Thought vs Union of India enhanced the age limit from 15 years to 18 to bring it in conformity with The Protection of Children from Sexual Offences, 2012 and Child Marriage Prohibition Act, 2005. After this judgment, the consent of a girl below 18 years will bear no relevancy and sexual intercourse with her, whether married or not, would necessarily mean rape even if she had given her consent.

It is pertinent to note that this exemption from the charge of rape of a married woman by her spouse or, more specifically, by her husband owes its origin to the Victorian concept. This exemption was propounded by Lord Chief Justice Hale in the 18th century when he stated that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial concept and contract that the wife has given up herself in this kind unto her husband which she cannot retract”. This is also known as Hale’s principle. As per this concept of morality, a woman was considered the property of her father before marriage and after marriage, of her husband. It appears that this concept recognises and attaches only proprietary characteristics to a woman by completely ignoring her humane existence.

This principle seems and sounds terrible in present times and came under harsh criticism. Finally, in 1992, the UK changed the concept of marital rape through Regina (Respondent) and R (appellant). In this case, the Court convicted a husband for attempting to rape his wife. On an appeal, the Appellate Court also upheld the conviction. To quote Lord Justice-General Lord Emsmile: “Nowadays, it cannot seriously be maintained that by marriage, a wife submits herself irrevocably to sexual intercourse in all circumstances.”

Also Read: The US Supreme Court’s Moment of Truth

Unfortunately, Indian society still does not hold a husband’s forceful sexual intercourse with his wife above 18 years as rape unless it comes under the purview of Section 376B IPC. Several civil and common law countries have done away with this principle and its consequential marital rape exemption. The basic logic for developed countries doing away with the practice is that women are not considered as chattel or property of their husbands anymore. In this era of gender equality and human dignity, the institution of marriage is regarded as companionship, not ownership.

A horrific incident in India exemplifies the state of excruciation of a victim wife when there is a vacuum in existing legislation and laws. In Maharashtra, a woman complained that her husband had sexual intercourse with her against her will a month after her wedding and she suffered paralysis because of that act. The judge noted that the issue of forced sex does not stand legal ground. The judge observed:

“It is very unfortunate that the young girl suffered paralysis. However, the husband the applicants in this case (husband and family) cannot be held responsible for the same.”

Recently, the issue of marital rape came into the limelight due to the hearings in RIT Foundation vs A Union of India before the Delhi High Court. The marital rape issue attracts considerable constitutional provisions. It attracts Article 14, Article 19(1) (a) and Article 21 of the Constitution. It intrudes into the equality concept. The non-criminalisation of marital rape promotes inequality between a married man and a married woman as it invites stereotypical gender-based roles in matrimonial conjugation. The non-criminalisation of matrimonial rape also intrudes in the actual realisation of Article 21 and Article 19 (1)(a) as it hinders the execution of a wife’s sexual autonomy and dignity with regard to her own body. Also, it results in harming her right to live with dignity, which is part and parcel of Article 21.

Also Read: Another Take on Education

However, the right to privacy which is quintessential in matrimonial bindings between a wife and her husband does not supersede the right to privacy guaranteed to an individual under the Constitution. In the landmark judgment Justice KS Puttaswamy vs Union of India, 2017, the Supreme Court observed that the right to privacy is protected as a fundamental right under Articles 14, 19, and 21. In addition to this landmark judgment, the arguments advanced by some counsels in RIT and AIDWA before the High Court while citing the Puttaswamy case that “privacy must not be a cover to conceal patriarchal mindsets” seconds the view of criminalisation of marital rape.

The biggest concern in criminalising marital rape is to prove or disprove consent from the wife’s end. At times, the woman says no, but may imply an invitation actually. The highly private nature of the bedroom and lack of any evidence makes it extremely difficult to prove or disprove consent on the wife’s part.

There also exists the probability of its misuse by some women. This will strike at the very root of the institution of marriage and, eventually, men may become prey to the machinations of crooked minds. It is rightly said that when we talk about preserving women’s dignity, we should also talk about protecting the dignity of men against false accusations and prosecutions. The Constitution doesn’t discriminate based on gender.  

Also Read: Casting Out the Couch

Without having specific legislation on the burning issue, the victim can only come to court by pleading cruelty or filing a divorce, but she cannot proceed with rape. On the other hand, by various judgments, the Supreme Court observed that if a spouse refuses to have sex with the partner for a prolonged period without any sufficient reason, it would be tantamount to cruelty. This will serve as a ground for divorce.

Given this situation, there is a need to adopt a balanced approach in this matter. The presumption should favour the wife, on alignment with Section 114A of the Indian Evidence Act, 1872. An exemption clause should be attached to Section 54 of the Indian Evidence Act, suggesting that in case of a marital rape allegation, the previous character of the accused will also bear compelling relevance. This is even when the good character has not been pleaded in defence, as the nature of the crime, i.e. marital rape, is highly confidential and only circumstantial evidence will lead to the truth.

The exemption clause provided with Section 375 IPC regarding marital rape must be deleted from the text. Following the trend set up by South African legislation, it is proposed that punishment for marital rape should be identified as provided for rape in the existing IPC. However, being concerned with the possibility of laws being misused by a section of society, it can be asserted that IPC, through various provisions, put forth punishment for false charges under Sections 182, 191, and 211 IPC.

Also Read: Kashmiri Pandits group urges Supreme Court for probe into 90s Pandit massacre in Jammu and Kashmir

The judge and lawyers dealing with these cases should be sympathetic, apart from putting their intellect and knowledge, while deciding the issue. The primary purpose of criminalisation of marital rape should be to end the patriarchal concept of ownership of the husband of his wife and promote marriage as an institution of companionship.

It is time to remember the thought-provoking words of Justice Dipak Misra in Joseph Shine’s case in 2018: “The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, a few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as to how society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate, and their obituaries be written.”

—The writer is an LL.M. student, University of North Bengal

By Dr Swati Jindal Garg

“It doesn’t matter how rich or poor a person is, what gender or social class, or how much fame or education she possesses. Verbal, mental, and physical abuse can happen to anyone. It doesn’t matter what a woman’s ethnicity is because the only distinguishing color of abuse is black-and-blue.”

—La Toya Jackson, an American singer

Domestic violence is an inherent part of the lives of most women in India. As per a National Crime Records Bureau report—Crime in India—about 70 percent of women in India are victims of domestic violence. One of the biggest forms of this is marital rape.

Even though the power to say “no” has been given to Indian women in matters of consensual sex, yet as per Exception 2 of Section 375—sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years—is not rape. It decriminalises marital rape in India.

This is an unpleasant surprise as marital rape has been impeached in more than 100 countries and despite various leaps and bounds that Indian society has made in the past decade or so, especially after the 13th Criminal Law Amendment Act, 2013, the non-criminalisation of marital rape in India undermines the dignity and human rights of women.

The impunity provided to the husband under law from the offence of marital rape stems from Exception 2 of Section 375 on the grounds that there is an “implied consent” between a husband and a wife after marriage. This implies that both have consented to sexual intercourse and it cannot be otherwise. In other words, it is presumed that a wife delivers perpetual consent to have sex with her husband after marrying him.

This marital exception, however, was drafted on the basis of Victorian norms that were mainly patriarchal and hence, did not recognise men and women as equal to each other. Such a concept in today’s world is totally archaic and outdated. It is not only violative of Article 14 of the Indian Constitution, but also makes possible the victimisation of married women for no reason other than their marital status while protecting unmarried women from the same acts.

Time and again it has been held by Indian courts that consent is the essence of every sexual act and if it is missing, then the said act cannot be held to be legal and would be termed as rape. Exception 2 to Section 375, however, defeats the very purpose of the Section as, while on the one hand, it was drafted to protect women and punish those who engage in the abhorrent act of rape, it gives a free ticket to all husbands who indulge in non-consensual sex with their wives merely based on the fact that they are married to them.

As per the International Men and Gender Equality Survey 2011, one in five men has forced his wife or partner to have sex. While over 100 countries have criminalised marital rape, India, Saudi Arabia, Pakistan and China have not. Even though the Indian law makes consent a mandatory part of sex, yet it fails to recognise the fact that a woman cannot be said to give perpetual implied consent on the mere pretext that she is married and the perpetrator is her husband. In other words, Indian law fails to understand that consent and respect are reciprocal. If you respect a woman, you must take her consent, and if you have taken her consent, you must respect her.

Indian courts have refused to decide whether marital rape is an offence or not. Ignoring the elephant in the room will not make it go away. It will have to be faced some day and the day is drawing near. Even though feminists and women’s rights groups have long demanded criminalising marital rape, unlike domestic violence, it is yet to be a part of mainstream discourse. It is discussed in hushed tones and soon forgotten.

With the landmark judgment in R vs R case 30 years ago, the UK determined that it was a crime for a husband to rape his wife. In that case, the husband argued that marriage provided irrevocable consent. However, the court refused to accept this and convicted him as the exception to marital rape is a “legal fiction under the common law”. The court observed that for a person to be penalised for rape, the relationship between parties is immaterial.

But in India, this remains a grey area. Multiple petitions have been filed across various courts in the country to criminalise marital rape. Unfortunately, none of them have reaped any benefits yet. A 2015 petition filed by a woman was dismissed by the Supreme Court, citing that “law shall not change for one woman”.

In Arnesh Kumar vs State of Bihar, the apex court held that criminalising marital rape will be the “collapse of the social and family systems”. And in a surprising order, the Chhattisgarh High Court recently discharged a 37-year-old man in a rape case filed against him by his wife. While hearing a criminal revision plea filed by the man facing trial for raping his wife, Justice NK Chandravanshi discharged him of the charge of rape (Section 376), but upheld charges under Sections 377 (unnatural offences), 498A (husband or relative of husband of a woman subjecting her to cruelty), and 34 (acts done by several persons in furtherance of common intention).

On the other hand, earlier this month, the Kerala High Court ruled that marital rape, though not recognised under the penal code, could still be considered grounds for divorce as a form of cruelty. It said: “Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.”

In 2018, the Gujarat High Court ruled that non-consensual intercourse by a husband would not be dubbed rape, though subjecting his married partner to have oral or unnatural sex was akin to cruelty. That year, the Delhi High Court observed that both man and woman had a right to say “no” to physical relations and that marriage did not mean that “the woman is all time ready, willing and consenting…the man will have to prove that she was a consenting party”.

Psychologists D Finkelhor and K Yllo rightly said: “When a stranger does it, he doesn’t know me, I don’t know him. He’s not doing it to me as a person, personally. With your husband, it becomes personal. You say, this man knows me. He knows my feelings. He knows me intimately and then to do this to me—it’s such a personal abuse.”

No one could have put this better and the reality when looked at from this perspective becomes even more shocking and stark. The fact that marital rape is perfectly legal in India is one of the most horrifying and repressive issues. In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government criminalise marital rape. The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the same.

Despite the intent of the people at large and various committees, rape laws in our country continue to be what they are—patriarchal and archaic, considering women to be the property of men post marriage, with no right or agency over their own bodies. Lawmakers have, for all intents and purposes, made marriage a license for a husband to forcibly rape his wife with impunity. Even though the apex court extended the age limit in Section 375 from 15 years to 18 years in a PIL filed in 2017, this is but a small step to the beginning of a long journey. The legislature should bring marital rape within the purview of rape laws by eliminating Section 375 Exception 2 of the IPC.

Even though most countries recognise that rape is rape, be it marital or otherwise, why is it that despite being a burgeoning superpower, India continues to be one of the 36 countries that does not criminalise marital rape? One of the biggest reasons for this is that it is contended that women often falsely accuse their husbands here. The same excuse was used even when various violence laws were enacted to protect women in India, including the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC, which criminalises physical and mental cruelty against a woman by her husband or his family.

Even though there has never been any direct empirical evidence for the misuse claim except the low rate of convictions in dowry and cruelty cases, what we do know is that two out of every five women in India are victims of physical, sexual or emotional domestic violence. Choosing the number of convictions as the parameter to gauge the reality of the situation is also problematic because low conviction rates in India are often because of poor investigations, improperly collected or no evidence and omissions of witness statements. It is not because women are out to get men.

When we have a scenario where disadvantaged women don’t use even those laws which are in their favour, what to speak of those that don’t exist, together with lack of resources and access to proper legal help, the argument that they are abusing the law against men is surely a far-fetched one.

In a PIL filed in 2018, the Delhi High Court retorted to people who said that there is no such thing as marital rape. A bench headed by J. Gita Mittal said: “A rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s a rape? … Force is not a precondition for rape.”

Marital rape cannot be allowed to exist as implied consent for the parties involved and marriage in no way can imply perpetual consent for a woman. A “no” is a no. It does not matter if your wife says it or somebody else and men and the Indian legal system need to stop at that.

—The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi